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F I L E D

United States Court of Appeals


Tenth Circuit

PUBLISH

APR 29 2003

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

CONNIE ROSKA, on behalf of minor


children Rusty and Jessica Roska, and
Maria Stewart; JAMES ROSKA, on
behalf of minor children Rusty and
Jessica Roska, and Maria Stewart;
RUSTY ROSKA,
Plaintiffs - Appellants,
v.

No. 01-4057

CRAIG T. PETERSON; MELINDA


SNEDDON; SHIRLEY MORRISON;
COLLEEN LASATER; DAN
CHOATE; DARLA RAMPTON,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 1:99-CV-112-B)
Steven C. Russell, Affordable Legal Advocates, P.C., Salt Lake City, Utah,
appearing for Appellants.
Nancy L. Kemp, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney
General, with her on the brief), Office of the Attorney General, Salt Lake City,
Utah, appearing for the Appellees.
Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit
Judges.

TACHA, Chief Circuit Judge.


These matters are before the court on appellees petition for rehearing with
suggestion for rehearing en banc. We granted appellees petition for rehearing in
an order dated October 31, 2002. Pursuant to that order, the courts opinion of
September 5, 2002, is withdrawn and replaced by this revised published opinion.
OPINION
Plaintiffs brought this suit under 42 U.S.C. 1983, alleging various rights
deprivations under the Fourth and Fourteenth Amendments. The district court
found that defendants were entitled to qualified immunity and dismissed the suit.
We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM in part,
REVERSE in part, and REMAND for further proceedings.
I. Background
On May 20, 1999, Connie Roska dropped off her 12-year-old son, Rusty
Roska, at school. He was wearing a parka even though it was 70 degrees outside.
Patricia Maynor, a school nurse, noticed that Rusty looked ill, was sweating, and
had a pallid complexion. Mrs. Roska apparently stated that Rusty was suffering
from kidney failure. The school nurse called Rustys rehabilitation physician, Dr.
Judith Gooch, who allegedly informed the nurse that Rusty did not have kidney

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failure. 1
On May 26, 1999, employees for the Davis County School District met with
Melinda Sneddon, a caseworker for Utahs Division of Child and Family Services
(DCFS). The school district employees expressed concern for Rustys health and
provided several documents to DCFS. These documents included records
showing that in April 1998, Mrs. Roska told a teacher that Rusty had a hole in his
esophagus. In addition, the school nurse informed Sneddon that Mrs. Roska had
told her that Rusty had parasites in his intestines. Further, school officials
reported that Rustys healthy appendix had been removed at Mrs. Roskas
insistence. Finally, school officials reported that Rusty looked worse every day
and expressed concern that Rusty might die unless DCFS intervened. Further
investigation indicated that Mrs. Roska had allegedly claimed that Rusty suffered
from a disease that is only suffered by 10 or 100 people in the world.
Sneddon assigned Shirley Morrison, another caseworker, to investigate.
Morrison suspected that Mrs. Roska suffered from Munchausen Syndrome by
Proxy (MSBP), a disorder where an individual, usually a mother, inflicts
physical harm upon his or her children in order to gain the sympathy and attention
of medical personnel. E. Selene Steelman, Note,

A Question of Revenge:

Munchausen Syndrome by Proxy and a Proposed Diminished Capacity Defense


1

Dr. Gooch denies having this conversation.


-3-

for Homicidal Mothers , 8 Cardozo Womens L.J. 261, 262-63 (2002).

Morrisons investigation revealed that one of Rustys psychologists and a doctor


at Primary Childrens Hospital had suspected MSBP but were unable to
substantiate a diagnosis. Although Morrison later admitted that Rusty was not in
imminent danger of death,

the decision was made to remove Rusty from the

Munchausen Syndrome by Proxy was first diagnosed in 1977. It is a


variation of Munchausen Syndrome, a disorder named after Karl Fredrich von
Munchausen, a German nobleman with a penchant for telling lies about his
adventures in life. Melissa A. Prentice, Note, Prosecuting Mothers Who Maim
and Kill: The Profile of Munchausen Syndrome by Proxy Litigation in the Late
1990s, 28 Am. J. Crim. L. 373, 376 (2001); see also The Adventures of Baron von
Munchausen (Columbia Pictures 1988). While patients with traditional
Munchausen Syndrome induce or exaggerate their own illnesses in order to gain
the attention of medical professionals, MSBP patients cause such illness in others.
Id. MSBP patients are usually mothers in their twenties. The proxy is usually a
child, often a pre-verbal infant or toddler. Id. MSBP patients often smother
their child; inject him with insulin; feed him poison, ipecac, or laxatives; cause
dehydration; overmedicate; induce fevers, diarrhea, vomiting, or seizures; or
contaminate blood, urine, or feces samples. Id. There have been an estimated
200 to 1000 cases diagnosed since doctors first isolated the syndrome. Id. at 377.
2

During Morrisons deposition, the following colloquy occurred:

Q:

Did you think on that day [the 27th] that if you didnt remove
him, he would die within a few days?

A [Morrison]: No.
Q:

Did you think that if you didnt remove him, he would die
within a week?

A:

No.

Q:

A month?

(continued...)
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Roskas home.
On May 28, 1999, Morrison and Sneddon met with an Assistant Attorney
General of Utah, Craig Peterson, who advised them that the facts supported
removing Rusty from the home. Morrison and Sneddon, accompanied by a police
officer, allegedly entered the Roska residence, without a warrant and without
knocking, and proceeded to remove Rusty. Before leaving, they were admonished
over the phone by Doctor Gooch that removal could destroy this family
emotionally and Rusty may never recover. Sneddon consulted with her
supervisor, Colleen Lasater, and then proceeded with the removal. Plaintiffs
contend that, while in the home, Sneddon pushed Rustys sisters, Maria Stewart
and Jessica Roska, as they attempted to comfort Rusty, and abused others in the
home, both physically and verbally. DCFS placed Rusty in a foster home, where
he allegedly was not given proper medication for his chronic pain.
At an initial shelter hearing on June 3, 1999, the juvenile court ruled that
Rusty should remain in protective custody. After additional evidence was
produced the next day, the court ordered that Rusty be returned to the Roskas

(...continued)
A:
I have no way to know that.
3

Q:

You are pretty sure it wouldnt be a few days?

A:

Pretty sure.
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care. The court also ordered the Roskas to permit substantial intervention by
DCFS in Rustys treatment.
On October 6, 1999, plaintiffs commenced this action under 42 U.S.C.
1983. The plaintiffs are Rusty Roska, Connie and James Roska (Rustys parents),
and Maria Stewart and Jessica Roska (Rustys sisters). The defendants are Craig
Peterson, Assistant Attorney General for the State of Utah; Melinda Sneddon, a
social worker with DCFS; Shirley Morrison, a social worker with DCFS; Colleen
Lasater, Sneddons and Morrisons supervisor; and Dan Choate and Darla
Rampton, DCFS placement workers who placed Rusty in a foster home. The first,
third, fourth, and fifth causes of action are directed against Peterson, Sneddon,
and Morrison and allege three Fourth Amendment violations
Amendment violation.

and a Fourteenth

The second cause of action alleges that defendants

Sneddon and Morrison used unreasonable force in violation of the Fourth


Amendment. The sixth and seventh claims allege that all defendants violated
Rustys Fourteenth Amendment substantive due process right to be safe from
harm while held by the state (Count 6) and Mr. and Mrs. Roskas Fourteenth
Amendment rights to direct their childrens medical care (Count 7). Finally,
Plaintiffs allege that their Fourth Amendment rights were violated when
defendants unreasonably searched the plaintiffs home (Count 1), unreasonably
seized Rusty (Count 2), and abused and kidnapped Rusty (Count 4).
4

Plaintiffs allege that defendants violated their Fifth and Fourteenth


Amendment rights to maintain a family relationship (Count 5).
5

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plaintiffs eighth cause of action is against defendant Morrison for alleged


malicious prosecution and abuse of process. The district court granted defendants
summary judgment on grounds of qualified immunity. We now affirm in part,
reverse in part, and remand for further proceedings.
II. Discussion
A.

Standard of Review

We review de novo a district courts ruling on qualified immunity.

Farmer

v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002). Qualified immunity is an
entitlement not to stand trial or face the other burdens of litigation.
Forsyth , 472 U.S. 511, 526 (1985). The privilege is an

Mitchell v.

immunity from suit

rather than a mere defense to liability; and like an absolute immunity, it is


effectively lost if a case is erroneously permitted to go to trial.

Id. To determine

whether a plaintiff can overcome the qualified immunity defense, first we


determine whether the plaintiff has asserted a violation of a constitutional or
statutory right, and then we decide whether that right was clearly established such
that a reasonable person in the defendants position would have known that [his]
conduct violated that right.

Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir.

1996) (citation omitted). Order is important; we must decide first whether the
plaintiff has alleged a constitutional violation, and only then do we proceed to
determine whether the law was clearly established.
-7-

Saucier v. Katz , 533 U.S.

194, 200 (2001).


B.

Violation of a Constitutional Right

In conducting our qualified immunity analysis, we must first consider


whether plaintiffs allegations, if true, establish a constitutional violation.
Hope v. Pelzer , 536 U.S. 730, 122 S.Ct. 2508, 2513 (2002) (citation omitted). We
consider each of the plaintiffs allegations in turn.
1.

Fourth Amendment Claims (Counts 1, 2, 3, 4, and 8)

The Fourth Amendment, applied to the states through the Fourteenth


Amendments Due Process Clause, provides that [t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated. U.S.

C ONST . amend IV. Plaintiffs advance

five theories upon which a Fourth Amendment violation might be found. We


address each in turn.
a.

The Warrantless Entry (Count 1)

It is well-established that a warrantless search is presumptively


Although plaintiffs challenge the constitutionality of the defendants
conduct, plaintiffs do not challenge the state statutes to the extent the statutes
authorized the conduct in question.
6

In the district court, plaintiffs also alleged that defendants failed to knock
prior to entering the Roskas home. The plaintiffs did not, however, advance this
argument in their initial brief on appeal. Accordingly, defendants did not have an
opportunity to respond and the argument is not properly before us. The district
court on remand, however, may reconsider this aspect of plaintiffs Fourth
Amendment claim, in light of our discussion, infra.
7

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unreasonable under the Fourth Amendment and therefore invalid unless it falls
within a specific exception to the warrant requirement.

United States v. Zubia-

Melendez , 263 F.3d 1155, 1162 (10th Cir. 2001). In this case, it is undisputed
that defendants failed to obtain a warrant before entering and searching the
Roskas residence. Thus, defendants actions were presumptively unreasonable
under the Fourth Amendment unless an exception to the warrant requirement
applies. Id. Defendants point to two possible exceptions to the warrant
requirement. We consider each in turn.
(1)

Exigent circumstances

First, the defendants point to the exigent circumstances exception to the


warrant requirement. Exigent circumstances exist when:
(1) the law enforcement officers . . . have reasonable grounds to
believe that there is immediate need to protect their lives or others or
their property or that of others, (2) the search [is not] motivated by
an intent to arrest and seize evidence, and (3) there [is]
some
reasonable basis, approaching probable cause, to associate an
emergency with the area or place to be searched
.
United States v. Anderson , 981 F.2d 1560, 1567 (10th Cir. 1992) (alterations in
original). The government bears the burden of proving exigency.

United States

v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993). The governments burden is
particularly heavy where the police seek to enter a suspects home.
981 F.2d at 1567 (quoting

Anderson ,

United States v. Maez , 872 F.2d 1444, 1452 (10th Cir.

1989)). In evaluating whether exigent circumstances existed, we examine the


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circumstances as they would have appeared to prudent, cautious, and trained


officers. United States v. Anderson , 154 F.3d 1225, 1233 (10th Cir. 1998). This
exception is narrow, and must be jealously and carefully drawn.

Id.

After examining the record, we conclude that it contains no evidence that


could lead a reasonable state actor to conclude that there were exigent
circumstances. Although defendants at times assert that a delay to obtain a
warrant might have cost Rusty his life, the evidence shows otherwise. Defendants
were aware that various doctors had suspected that Rusty was a victim of MSBP
for quite some time, and the record indicates that there was nothing particularly
unusual about Rustys condition at the time he was removed. Rustys attending
physician stated on the phone that it would be a mistake to remove him from the
home. Because no evidence indicates that Rusty was in immediate threat of death
or severe physical harm indeed, the evidence points to the opposite conclusion
we do not find sufficient exigent circumstances to relieve the state actors here of
the burden of obtaining a warrant.

See Coolidge v. New Hampshire , 403 U.S.

443, 470-71 (1971) (But where the discovery is anticipated, where the police
know in advance the location of the evidence and intend to seize it . . . [t]he
requirement of a warrant to seize imposes no inconvenience whatever, or at least
none which is constitutionally cognizable in a legal system that regards
warrantless searches as per se unreasonable in the absence of exigent
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circumstances.).
(2)

The special needs doctrine

Within the last thirty years, courts have increasingly recognized certain
narrow circumstances that justify searches and seizures without reference to the
Fourth Amendments warrant clause or probable cause requirement. These are
situations in which the requirement of a warrant based upon probable cause is illsuited to achieving certain special needs of government, such as enforcing
school discipline, New Jersey v. T.L.O. , 469 U.S. 325, 333-40 (1985), allowing
administrative searches of the business premises of closely-regulated industries,
New York v. Burger , 482 U.S. 691, 700 (1987), and taking inventory of seized
items for caretaking purposes,

Cady v. Dombrowski , 413 U.S. 433, 447-48

(1973).
In all special needs cases, the nature of the need addressed makes
particularized suspicion impossible or otherwise renders the warrant requirement
impractical. For example, in

Griffin v. Wisconsin , the Court noted that requiring

a warrant before a search of a probationers home would interfere to an


Defendants do not make this argument directly. Rather, the defendants
argue that clearly established law did not rule out the applicability of the
special needs doctrine to the facts of this case. Consideration of this argument
requires us to answer two questions: (1) whether the special needs doctrine
applies on the facts of this case; and (2) whether clearly established law
provided the reasonable state actor fair warning of the inapplicability of the
special needs doctrine to the facts of this case.
8

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appreciable degree with the probation system, and would reduce the deterrent
effect that the possibility of expeditious searches would otherwise create. 483
U.S. 868, 876 (1987) (citation omitted). Similarly, the

Burger Court noted that

surprise is crucial if the regulatory scheme aimed at remedying this major social
problem is to function at all. 482 U.S. at 710;

see also Skinner v. Railway Labor

Executives Assn , 489 U.S. 602, 619 (recognizing that the special need
articulated must make the warrant and probable-cause requirement
impracticable before waiving those requirements). If a special need renders the
warrant requirement impracticable, we then balance the nature of the privacy
interest upon which the search intrudes and the degree of intrusion occasioned by
the search against the nature and immediacy of the governmental concern at
issue . . . and the efficacy of this means for meeting it.

Vernonia Sch. Dist. 47J

v. Acton , 515 U.S. 646, 660 (1995).


We find no special need that renders the warrant requirement impracticable
when social workers enter a home to remove a child, absent exigent
circumstances. First, we note that individualized suspicion is at the heart of a
removal of a child from a home, distinguishing the instant case from the various
drug testing cases that have been addressed by the Court. Second, unlike the
situation in Burger (and assuming that exigent circumstances are not present),
there is no need for surprise or sudden action that renders obtaining a warrant
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counterproductive. Nor is this situation similar to the position of the probationer


in Griffin the Roskas were not in the criminal justice system, there was no
deterrent function being served by the threat of a sudden, warrantless search, and
there was no immediate need for a quick response.

Simply put, unless the child

is in imminent danger, there is no reason that it is impracticable to obtain a


warrant before social workers remove a child from the home. Defendants took
the time to seek the advice of an Assistant Utah Attorney General before
proceeding with the removal; surely they could have taken the time to incur the
minimal inconvenience involved in obtaining a warrant.

Burger , 482 U.S. at 727

(Brennan, J., dissenting).


It is true that the state has a strong interest in protecting children, and that
this interest should be taken into account in evaluating the reasonableness of the
search and seizure challenged by plaintiffs. However, what is reasonable under
the Fourth Amendment depends on the context within which a search takes
place. T.L.O., 469 U.S. at 337. The action challenged in this case involved not
This statement is not meant to foreclose the possibility that a special need
justifying an abrupt, warrantless search of a home might be present when a family
is already in the DCFS system or when a child has been placed in a foster home.
These are situations where routine, random inspections might be needed in order
to assure the safety of the childs conditions. But that is simply not the situation
here, where the social workers entered the Roskas house not to inspect Rusty, but
to remove him. Indeed, the record reveals that even though the social workers
found that Rusty looked much healthier than they expected, they nonetheless
proceeded with the removal.
9

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only a warrantless search, but also the removal of a child from his parents. In
such a case, the interest of the government in protecting the child must be
balanced against the interest of the parents in keeping the family together. Even
when blood relationships are strained, parents retain a vital interest in preventing
the irretrievable destruction of their family life. Santosky v. Kramer, 455 U.S.
745, 753 (1982). Measured against this parental interest, the states interest in
protecting children does not excuse social workers from the warrant requirement
of the Fourth Amendment.
b.

Unreasonable Use of Force (Count 2)

Plaintiffs claim that Sneddon and Morrison violated Jessica Roskas and
Maria Stewarts Fourth Amendment rights to be free of unreasonable use of force
by pushing them against a wall. Before addressing an unreasonable use of force
claim, we must examine the context in which the claim arises.

Austin v.

Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) (We must first place the
objectionable events in this case somewhere along the custodial continuum
running through initial arrest or seizure, post-arrest but pre-charge or pre-hearing
custody, pretrial detention, and post-conviction incarceration; and then determine
what constitutional protection controls at which particular juncture.),

overruled

on other grounds , Johnson v. Jones , 515 U.S. 304 (1995); see also Metcalf v.
Long , 615 F. Supp. 1108, 1118-20 (D. Del. 1985) (noting that post-conviction
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claims for excessive force are brought under the Eighth Amendment).
Claims that state actors used excessive force deadly or not in the course
of a seizure are analyzed under the Fourth Amendments reasonableness standard.
Graham v. Connor , 490 U.S. 386, 395 (1989).

Plaintiffs must show both that a

seizure occurred and that the seizure was unreasonable. Brower v. County of
Inyo, 489 U.S. 593, 599 (1989). A person is seized within the meaning of the
Fourth Amendment when a reasonable person would believe that he or she is not
free to leave.

Florida v. Bostick , 501 U.S. 429, 435 (1991). Here, nothing

indicates that Jessica Roska or Maria Stewart did not feel free to leave. Quite the
contrary, Sneddons alleged statement to get the f**k out indicates that they
were encouraged to leave. Hence, we cannot say they were seized within the
meaning of the Fourth Amendment.
A determination that plaintiffs were not seized within the meaning of the
Fourth Amendment does not end the inquiry, however. Substantive due process
analysis is appropriate in cases that involve excessive force where a specific
constitutional provision such as the Fourth or Eighth Amendment does not
apply. County of Sacramento v. Lewis , 523 U.S. 833, 843 (1998) ( Graham
simply requires that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under
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the rubric of substantive due process. Substantive due process analysis is


therefore inappropriate in this case only if respondents claim is covered by the
Fourth Amendment.) (quoting

United States v. Lanier , 520 U.S. 259, 272, n.7

(1997)). We therefore analyze plaintiffs claim under the Fourteenth Amendment


Due Process Clause.
The Fourteenth Amendment protects citizens against state actions that
deprive them of life, liberty, or property without due process of law. U.S.

C ONST .

amend. XIV. We examine three factors in determining whether force was


excessive within the meaning of the Fourteenth Amendment: (1) the relationship
between the amount of force used and the need presented; (2) the extent of the
injury inflicted; and (3) the motives of the state actor.

Hannula v. City of

Lakewood , 907 F.2d 129, 131-32 (10th Cir. 1990). Force inspired by malice or by
unwise, excessive zeal amounting to an abuse of official power that shocks the
conscience . . . may be redressed under [the Fourteenth Amendment].
City of Truth or Consequences

Hewitt v.

, 758 F.2d 1375, 1379 (10th Cir.1985). While we

express some doubt as to the need to push or swear at adolescent girls, use of
such force to move children who might be interfering with the removal of a child
from the home is not so disproportionate as to rise to the level of a liberty
violation within the meaning of the Due Process Clause. Additionally, no serious
physical injury was inflicted, and we have never upheld an excessive force claim
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without some evidence of physical injury outside of the context of a Fourth


Amendment violation.

Bella , 24 F.3d at 1257. Finally, nothing in the record

indicates that the defendants were motivated by malice or other improper


motive. 10 In sum, the facts alleged here fall short of the type of force that has
been found to rise to the level of a due process violation.
Gutierrez-Rodriguez v. Cartagena

Compare

, 882 F.2d 553 (1st Cir.1989) (upholding a due

process claim where four plain clothes police officers were conducting
preventive rounds in search of drug traffickers and, with guns drawn,
approached a young couple sitting in a car and, when the driver hastily started the
engine and drove away, began shooting without warning and struck the driver in
the back with one bullet, damaging his spinal cord and rendering him a
paraplegic), with Bella , 24 F.3d 1251 (finding no due process violation where
police officers allegedly shot at and struck plaintiffs helicopter while plaintiff
unwillingly assisted in the escape of three inmates). The district court was
correct in dismissing this count.
c.

Warrantless Seizure of Rusty (Count 3)

Defendants clearly seized Rusty within the meaning of the Fourth

We acknowledge that plaintiffs have alleged malicious prosecution and


claim that defendants seizure of Rusty had improper motivations. Nothing,
however, indicates that the relevant plaintiffs were pushed by Sneddon as the
result of a malicious motive.
10

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Amendment, and defendants did so without a warrant and without exigent


circumstances. Plaintiffs have therefore sufficiently alleged a violation of
Rustys Fourth Amendment right to be free from unreasonable seizures.
d.

Fourth Amendment Right to be Protected Against Child


Abuse and Kidnapping (Count 4)

Plaintiffs assert that defendants violated Rustys Fourth Amendment right


to be protected against child abuse and kidnapping. We find no authority that
suggests the existence of such a constitutional right, and we analyze this claim
along with plaintiffs more traditional due process and unreasonable seizure
claims. To the extent that plaintiffs sought to assert a distinct Fourth Amendment
violation for child abuse and kidnapping, the district court properly dismissed
Count 4.
e.

Malicious Prosecution and Abuse of Process (Count 8)

Plaintiffs claim that defendant Morrison is liable for malicious prosecution


and abuse of process. In this circuit, state law provides the starting point for a
constitutional claim of malicious prosecution and abuse of process.
Pawnee County Bd. of County Commrs

Erikson v.

, 263 F.3d 1151, 1154, 1155 n.5 (10th

Cir. 2001). In Utah, malicious prosecution occurs when (1) defendants initiated
or procured the initiation of criminal proceedings against an innocent plaintiff;
(2) defendants did not have probable cause to initiate the prosecution; (3)
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defendants initiated the proceedings primarily for a purpose other than that of
bringing an offender to justice; and (4) the proceedings terminated in favor of the
accused. Hodges v. Gibson Prods. Co. , 811 P.2d 151, 156 (Utah 1991). Here,
Morrison did not initiate or procure the initiation of criminal proceedings.
Therefore, there is no Fourth Amendment claim for malicious prosecution.

11

Under Utah law, abuse of process claims require that legal proceedings be
instituted without probable cause, for the purpose of harassment or annoyance;
and it is usually said to require malice.

Baird v. Intermountain Sch. Fed. Credit

Union , 555 P.2d 877, 878 (Utah 1976). Utah law has also defined the tort as
using judicial resources to accomplish some improper purpose, such as
compelling its victim to do something which he would not otherwise be legally
obliged to do.

Crease v. Pleasant Grove City

, 519 P.2d 888, 890 (Utah 1974). If

the criminal process is used for its intended purpose, the mere fact that it has
some other collateral effect does not render the action an abuse of process.

Id.

Utah recognizes a similar tort for civil proceedings, called wrongful use
of civil proceedings. Gilbert v. Ince, 981 P.2d 841, 845 (Utah 1999). Although
no Utah case is on point, most jurisdictions include quasi-criminal proceedings in
the latter tort. W. Page Keeton, et al., Prosser & Keeton on Torts 890 (5th ed.
1984). However, plaintiffs have not pled wrongful use of civil proceedings, and
they do not argue it in their briefs. Neither an opposing party nor this court is
under any obligation to craft legal theories for a plaintiff. See Abdelsamed v.
United States, 2002 WL 462027, at *1 (10th Cir. 2000); see also Fed. R. Civ. Pro.
8(a) (requiring a short and plain statement of the grounds for relief). We
therefore do not address a potential claim for wrongful use of civil proceedings.
11

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Even actions motivated purely by spite will not support a claim if process is
ultimately used only to accomplish the result for which it was created.

Prosser &

Keeton at 897.
Morrison stated in her deposition that she did not believe Rustys death was
imminent and that she commenced the removal in part to create a type of
controlled experiment to facilitate a diagnosis of MSBP. However, no inference
of an improper, ulterior purpose can be drawn from these statements. Rather,
these statements are wholly consistent with a concern for Rustys health and an
attempt to diagnose MSBP, even if Rustys imminent death was not expected.
Because there is no evidence from which an inference can be drawn that Morrison
used the judicial process to accomplish some improper purpose, we find that
plaintiffs have not sufficiently alleged an abuse of process violation.
2.

Fourteenth Amendment Claims

The Fourteenth Amendment Due Process Clause provides that no state shall
deprive any person of life, liberty, or property without due process of law. U.S.
C ONST . amend XIV, 1. Plaintiffs advance three theories in asserting a
deprivation of their liberty interests without due process of law.
a.

Right to Maintain a Family Relationship (Count 5)

Plaintiffs contend that they were deprived of their liberty interest in their
family relationship without due process of law when Rusty was removed without
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notice or a hearing. Based on the pleadings and depositions, plaintiffs have


sufficiently alleged a deprivation of a constitutional right.
In Santosky v. Kramer , the Supreme Court made clear that termination of
parental rights impinges upon a liberty interest of which a citizen may not be
deprived without due process of law. 455 U.S. 745, 753-54 (1982).

Santosky

dealt only with the proper standard of review and arose within the context of a
permanent termination of parental rights. This circuit has applied

Santosky s

holding, however, to the temporary seizures of children and has held that notice
and a hearing are required before a child is removed except for extraordinary
situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event.
1377, 1385 (10th Cir. 1989) (quoting

Spielman v. Hildebrand , 873 F.2d

Smith v. Org. of Foster Families for Equal.

& Reform , 431 U.S. 816, 848 (1977)). Valid governmental interests include
emergency circumstances which pose an immediate threat to the safety of a
child. Hollingsworth v. Hill , 110 F.3d 733, 739 (10th Cir. 1997). As the Second
Circuit has noted, the mere possibility of danger is not enough to justify a
removal without appropriate process.

Tenenbaum v. Williams , 193 F.3d 581, 594

(2d Cir. 1999).


As we discussed above, plaintiffs have pled sufficient facts to demonstrate
that emergency circumstances did not exist to justify Rustys immediate removal
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from the home without notice or a hearing. Defendants did not even attempt to
obtain an ex parte order. We therefore find that plaintiffs have sufficiently
alleged a violation of their Fourteenth Amendment procedural due process rights.
b.

Right to be Safe From Harm While Being Held by the


State (Count 6)

Plaintiffs claim that Rusty was deprived of his liberty interest in being safe
from harm when the state placed him in a foster home that was unprepared to
meet his needs and when he was given the wrong dose of methadone in the foster
home.
States must ensure reasonable care and safety to persons within their
custody. Youngberg v. Romeo , 457 U.S. 307, 324 (1982). This includes children
in foster care.

Yvonne L. v. N.M. Dept of Human Servs.

, 959 F.2d 883, 892

(10th Cir. 1992). There are two circumstances in which the state may be liable
for failing to ensure the safety of children in its care. First, the state may be
liable when a state actor shows deliberate indifference to serious medical needs
of a child who is in state custody.

Garcia v. Salt Lake County , 768 F.2d 303, 307

(10th Cir. 1985). Second, a state may be liable when state actors place children
in a foster home or institution that they know or suspect to be dangerous to the
children, if harm actually occurs.

Id. at 893.

There are no allegations here that state actors showed deliberate


-22-

indifference to Rustys health problems.

12

Plaintiffs allege only that defendants

knew that the foster home in which Rusty was placed was not equipped to care for
him. In support of this assertion, plaintiffs offer deposition testimony that the
foster mother could not care for Rusty, that defendants had had a similar problem
with children once before, and that Morrison was aware that Rusty was suffering
and did nothing. However, a more thorough examination of the record reveals
that the foster parents simply indicated that they would not be able to care for
Rusty on a long-term basis, and that a child in a similar situation had been placed
in a nursing home.

13

c.

The district court was correct in dismissing the claim.


Right to Direct Childrens Medical Care (Count 7)

Plaintiffs allege that the removal of Rusty and his placement in state care
violated Connie and James Roskas rights to direct their sons medical care. In
Plaintiffs do not name the foster parents as defendants, nor do they allege
that any named defendant was involved in determining the methadone levels that
Rusty received. Plaintiffs allegations that defendants ignored Dr. Goochs
recommendation that Rusty remain with his family as part of his rehabilitation do
not rise to the level of deliberate indifference.
12

Plaintiffs alleged in their initial pleadings that Morrison was aware that
Rusty was suffering in foster care. This could potentially qualify as deliberate
indifference. However, plaintiffs do not mention this in their briefs on appeal,
and they direct us to no citation in the record in support of this contention.
Without a specific reference, we will not search the record in an effort to
determine whether there exists dormant evidence which might require submission
of the case to a jury. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th
Cir. 1995) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(Judges are not like pigs, hunting for truffles buried in briefs.)).
13

-23-

support of this contention, plaintiffs direct us to one case:

In re J.P. , 648 P.2d

1364 (Utah 1982). That case addressed a permanent termination of parental


rights. Id. at 1366 n.1. Plaintiffs point us to no authority or argument supporting
an extension of such a right to a temporary deprivation such as that suffered by
the Roskas. We also note that the Utah case cited by plaintiffs does

not refer to a

Fourteenth Amendment right of parents to direct their childs medical care.


Rather, it simply notes that Utah law includes such a right among those that a
state may terminate upon an adequate showing of parental abuse or neglect.
Plaintiffs briefing gives us no substantive argument as to what the scope of
such a right might be or how other interests should be balanced against such a
right. Perhaps most important, nothing in the record indicates that the state
sought to alter Rustys medical program, other than an alleged inadvertent change
in his methadone dosage. Given the paucity of the plaintiffs arguments and
evidence on this point, we cannot find that plaintiffs have made an adequate
showing of a deprivation of a constitutional right to direct Rustys medical care.

14

We express no opinion on whether such a right might exist within the


context of general familial rights. Cf. Santosky v. Kramer, 455 U.S. 745, 758-59
(1982) ([A] natural parents desire for and right to the companionship, care,
custody, and management of his or her children is an interest far more precious
than any property right.) (internal quotation marks omitted); Meyer v. Nebraska,
262 U.S. 390, 400-03 (1923) (holding that the Due Process Clause confers a right
to direct a childs education). We simply state that plaintiffs have made neither
an adequate argument nor a factual showing to support such a right on this record.
14

-24-

3.

Conclusion

Having decided that the plaintiffs have adequately alleged that they
suffered constitutional violations when the social workers entered their house
without a warrant (Count 1), when they seized Rusty without a warrant (Count 3),
and when they removed him without notice and a hearing (Count 5), we now
consider whether the law was clearly established at the time the alleged violations
occurred.
C.

Whether the Rights Were Clearly Established Such that a Reasonable


Person Would Understand that Her Conduct Violated the Law.

Despite their participation in this constitutionally impermissible conduct,


the [defendants] may nevertheless be shielded from liability for civil damages if
their actions did not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.

Hope , 122 S.Ct. at 2515

(quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Concerning the
clearly established law requirement, the contours of the right must be
sufficiently clear such that an objectively reasonable officer would understand
that what she is doing violates that right.

Anderson v. Creighton , 483 U.S. 635,

639-40 (1987). If the law was clearly established, the immunity defense
ordinarily should fail, since a reasonably competent public official should know
the law governing his conduct.

Harlow , 457 U.S. at 818-19 (emphasis added).


-25-

Nevertheless, if the official pleading the defense claims extraordinary


circumstances and can prove that he neither knew nor should have known of the
relevant legal standard, the defense should be sustained.
words, a civil rights defendant is entitled to
deprived his victim of a constitutional right.

Id. at 819. In other

fair warning that his conduct


Hope , 122 S.Ct. at 2515 (emphasis

added). 15
Thus, the touchstone of our inquiry is whether the officers [were] on
notice [that] their conduct [was] unlawful.

Id. (quoting Saucier , 533 U.S. at

206). Although the best indicium of fair notice is whether the law was clearly
established at the time of the constitutional violation,

Harlow makes clear that

other factors may be relevant in determining the objective reasonableness of the


state actors conduct. 457 U.S. at 819.
1.

Whether the law was clearly established.

The law is clearly established when a Supreme Court or Tenth Circuit


decision is on point, or if the clearly established weight of authority from other
courts shows that the right must be as plaintiff maintains.

Farmer v. Perrill , 288

The Supreme Court has noted the analogue in criminal law: the void-forvagueness doctrine. [T]he qualified immunity test is simply the adaptation of the
fair warning standard to give officials (and, ultimately, governments) the same
protection from civil liability and its consequences that individuals have
traditionally possessed in the face of vague criminal statutes. Hope, 122 S.Ct. at
2515 n.10.
15

-26-

F.3d 1254, 1259 (10th Cir. 2002). Although earlier cases involving
fundamentally similar facts can provide especially strong support for a
conclusion that the law is clearly established, they are not necessary to such a
finding. Hope , 122 S.Ct. at 2516.
a.

16

Plaintiffs Fourth Amendment claims (Counts 1 and 3)

Our jurisprudence has long recognized that a persons privacy interest is at


its highest in a persons home. In terms that apply equally to seizures of
property and to seizures of persons, the Fourth Amendment has drawn a firm line
at the entrance to the house. Absent exigent circumstances, that threshold may
not reasonably be crossed without a warrant.

Payton v. New York , 445 U.S. 573,

590 (1980); see also United States v. U.S. District Court

, 407 U.S. 297, 313

(1972) ([P]hysical entry into the home is the chief evil against which the . . .
Fourth Amendment is directed . . . .). Searches conducted without a warrant are
per se unreasonable under the Fourth Amendment subject only to a few
specifically established and well-delineated exceptions.
389 U.S. 347, 357 (1967) (footnotes omitted)

Katz v. United States ,

. This insistence upon interposing a

neutral and detached magistrate between the state and the citizenry, subject to

As we have previously recognized, a requirement of a case directly on


point would quickly transform the qualified immunity standard into an absolute
immunity standard in the vast majority of cases.
Yvonne L. v. N.M. Dept of
Human Servs. , 959 F.2d 883, 892 (10th Cir. 1992).
16

-27-

only a few exceptions justified by exceptional circumstances,

Johnson v. United

States , 333 U.S. 10, 13-14 (1948), has become a cardinal principle of Fourth
Amendment jurisprudence,

Mincey v. Arizona , 437 U.S. 385, 390 (1978).

17

Further, the only situation in which the Supreme Court has extended the special
needs doctrine to an individuals home occurred in
was a probationer.

See 483 U.S. 868 (1989);

Griffin , where the defendant

cf. Camara v. Municipal Court , 387

U.S. 523, 540 (1967) (holding that a warrant was needed to perform an
administrative search upon private property). Consistent with these principles, in
Franz v. Lytle , we held that police officers could not enter a house to investigate
potential child abuse without a warrant. 997 F.2d 784, 791-92 (10th Cir. 1993);
cf. Calabretta v. Floyd , 189 F.3d 808, 817 (9 th Cir. 1999) (denying qualified
immunity on similar facts);

Good v. Dauphin County Social Servs.

, 891 F.2d

1087, 1094 (3d Cir. 1989) (same).


On the other hand, we have made certain statements, albeit in

dicta , that

could be construed as drawing distinctions between (1) child-abuse investigations


and other types of investigations and (2) social workers and law-enforcement

At least two cases involving the entry of social workers or police officers
into a home to inspect or remove a child have upheld the warrant requirement.
Good v. Dauphin County Soc. Servs. , 891 F.2d 1087, 1093-94 (3d Cir. 1989);
Calabretta v. Floyd , 189 F.3d 808, 813 (9th Cir. 1999) (decided after May 1999).
17

-28-

officers.

18

For example, in Snell v. Tunnell , in the context of a warrantless search

of a house during a child-abuse investigation, we stated: [W]e do not have


occasion to decide whether a search of a private home without a warrant or
probable cause violates the fourth amendment. Courts have reached differing
results concerning the difficult issue of the scope of the fourth amendment
protection in the context of a child abuse investigation.
(10th Cir. 1990) (citations omitted). Further, in

19

920 F.2d 673, 697

Franz , we suggested that the

Fourth Amendments strictures might apply differently to social workers:


[A] social workers principal focus is the welfare of the child. While
a criminal prosecution may emanate from the social workers
activity, that prospect is not a part of the social workers cachet.
This distinction of focus justifies a more liberal view of the amount
of probable cause that would support an administrative search.
997 F.2d at 791.

20

Taken together, Franz and Snell injected a degree of

This latter distinction, of course, runs contrary to the general principle


under which we focus on the function being performed by the state actor, rather
than her particular job title, in conducting our immunity analysis.
18

Subsequently, in Franz , we upheld the warrant requirement, although the


defendant was a police officer rather than a social worker. 997 F.2d at 791-92
(holding that police officers could not enter a house to investigate potential child
abuse without a warrant).
19

Other statements in Franz alluded to the possibility of the special needs


doctrine applying in the context of child-abuse investigations. See, e.g., Franz,
997 F.2d at 789 ([Social workers] [might] be hindered in their investigations of
alleged child abuse by a warrant or probable cause requirement.); id. at 791
([S]pecial governmental needs, beyond the normal need for law enforcement . . .
[could] provide[] the reasonableness component for the caseworkers conduct.)
(continued...)
20

-29-

uncertainty into an otherwise staple rule of Fourth Amendment jurisprudence:


absent exigent circumstances, the state may not enter an individuals home
without a warrant.

21

Payton , 445 U.S. at 590. In other words, in light of these

cases, the constitutional question [regarding the warrant requirement] presented


by this case is by no means open and shut.

22

Wilson v. Layne , 526 U.S. 603, 615

(1999).
Nevertheless, we cannot say that, in light of these cases, a reasonable state
actor could conclude that the Fourth Amendment allowed a warrantless home
entry and seizure of a child absent something approaching probable cause

23

to

(...continued)
(citation omitted).
20

In Snell, we noted that the circuits are split on the scope of a social
workers power to act without a warrant. 920 F.2d at 697. Our broad language
notwithstanding, the circuits are split over the power of a social worker to inspect
a child without a warrant, not over the power to enter a home without a warrant
thus implicating the strong constitutional right against unreasonable intrusions
into the home and remove a child without a warrant thus implicating the
parental right to keep the family together.
21

Significantly, in Hidahl v. Gilpin County Department of Social Services,


we granted qualified immunity to social workers who removed a child from a
home without a warrant, without considering the constitutionality of the conduct
in question. 938 F.2d 1150, 1153 (10th Cir. 1991).
22

Lest this statement be taken out of context, based on our earlier


discussion in section II(B)(1), supra, henceforth, the law is now clearly
established that, absent probable cause and a warrant or exigent circumstances,
social workers may not enter an individuals home for the purpose of taking a
child into protective custody.
23

-30-

believe that: (1) the childs health or safety was at risk,


due to the childs presence in the home

24

and (2) this risk was

. In this case, however, the district court

specifically concluded that:


[A]n objective, reasonable state social worker could have reasonably
believed, based on the information the DCFS defendants possessed at
the time of removal, that there was
substantial cause to believe that
there was a substantial danger to Rustys health or safety
and that
Rustys health or safety could not be protected without removing him
from his parents custody.
Dist. Ct. Order at 20 (emphasis added). The district court went on to conclude
that there was substantial cause to believe that Rustys

presence in his own home

was the reason for his particularly troubling and persistent condition

of being

restrained to a wheelchair and having to be fed through an intravenous tube even


though he was not physically handicapped. Dist. Ct. Order at 21 (emphasis
added). The record in this case supports the district courts findings.

25

Accordingly, based on these findings, we hold that defendants warrantless entry


We recognize that immediate risk to safety would give rise to exigent
circumstances. Anderson, 981 F.2d at 1567 (exigent circumstances not present
unless there is an immediate need to protect [the officers lives or [the lives of]
others). In this case, however, as we discussed supra, even though the
defendants reasonably concluded that Rustys health was at risk, the risk was not
immediate. Accordingly, the exigent circumstances exception to the warrant
requirement under the Fourth Amendment is inapplicable.
24

We realize that the district court made these findings in the context of
determining whether defendants complied with Utah Code Ann. 78-3a-301.
Nevertheless, section 78-3a-301s substantial cause requirement is sufficiently
similar to the standard articulated herein for the district courts findings to
support our conclusion.
25

-31-

and seizure did not violate clearly established law under the Fourth Amendment
as it stood on May 28, 1999.
b.

Plaintiffs Fourteenth Amendment claim (Count 5)

In Malik v. Arapahoe County Dept of Soc. Servs.

, we held that it [is]

clearly established law that, except in extraordinary circumstances, a parent has a


liberty interest in familial association and privacy that cannot be violated without
adequate pre-deprivation procedures. 191 F.3d 1306, 1315 (10th Cir. 1999)
(citations omitted).

26

In this case, defendants afforded the Roskas

no process

prior to removing Rusty. Defendants did not even attempt to obtain an

ex parte

order. Further, defendants point to no extraordinary circumstances that would


justify the complete absence of pre-deprivation procedural safeguards. Although
emergency circumstances which pose an immediate threat to the safety of a
child might justify the absence of pre-deprivation procedures,

Hollingsworth ,

110 F.3d at 739, in this case, Rustys health and safety were not in immediate
danger. Thus, regarding plaintiffs claim under the Fourteenth Amendment,
clearly established law plainly put defendants on notice that their conduct violated
the Constitution.
c.

Summary

Significantly, one of the defendants in Malik was a social worker. See


191 F.3d at 1310.
26

-32-

Based on the foregoing, we conclude that defendants warrantless entry and


seizure did not violate clearly established law under the Fourth Amendment as it
stood on May 28, 1999; thus, defendants are entitled to qualified immunity on
plaintiffs claim alleging warrantless entry and seizure. On the other hand,
defendants conduct did violate clearly established law under the Fourteenth
Amendment as of May 29, 1999. Accordingly, we proceed to consider the
objective legal reasonableness of defendants conduct in light of clearly
established law under the Fourteenth Amendment.
2.

Whether a reasonable state actor would have understood the


conduct in question to be violative of the Constitution.

The next step in the analysis is to consider the

objective legal

reasonableness of the [state actors] action[s], assessed in light of the legal rules
that were clearly established at the time it was taken.

Anderson , 483 U.S. at

639 (emphasis added) (citations omitted). Once the district court determines that
the right at issue was clearly established, it becomes defendants burden to
prove that her conduct was nonetheless objectively reasonable.

Cannon v. City &

County of Denver , 998 F.2d 867, 874 (10th Cir. 1993).


In considering the reasonable state actor, we must keep in mind that
qualified immunity precludes the imposition of liability for all but the
incompetent or those who knowingly violate the law.
-33-

plainly

Malley v. Briggs , 475 U.S.

335, 341 (1986) (emphasis added). Where officers of reasonable competence


could disagree on th[e] issue, immunity should be recognized.

Id. at 341.

At the same time, where the right is clearly established, a defendant should
only rarely be able to succeed with a qualified immunity defense.
v. Wyoming Department of Environmental Quality
Cir. 1990).

27

V-1 Oil Co.

, 902 F.2d 1482, 1488 (10th

The circumstances must be such that the defendant was so

prevented from knowing that his actions were unconstitutional that he should
not be imputed with knowledge of a clearly established right.

Cannon , 998 F.2d

at 874 ( citation and footnote omitted).


The objective legal reasonableness of the officers actions is a legal
question. Sharrar v. Felsing , 128 F.3d 810, 828 (3d Cir. 1997). But where the
historical facts material to [that] issue are in dispute [there] . . . [is] an issue for
the jury.

28

Id.

As we noted in Cannon v. City & County of Denver , officials are


[generally] held to have constructive knowledge of established law. 998 F.2d
867, 874 n.6 (10th Cir. 1993) (citation omitted).
27

28

As the Fifth Circuit has noted:

It must be recognized that even though [Hunter v. Bryant, 502 U.S.


224 (1991)] diminished the jurys role in qualified immunity cases, it
did not entirely abolish it. Rule 56 still has vitality in qualified
immunity cases if the underlying historical facts in dispute . . . are
material to the resolution of the questions whether the defendants
acted in an objectively reasonable manner in view of the existing law
and facts available to them.
(continued...)
-34-

a.

Reliance on a statute

In considering the objective legal reasonableness of the state officers


actions, one relevant factor is whether the defendant relied on a state statute,
regulation, or official policy that explicitly sanctioned the conduct in question.

29

See Wilson , 526 U.S. at 617; Lederman v. United States , 291 F.3d 36, 47 (D.C.
Cir. 2002); Grossman v. City of Portland

28

, 33 F.3d 1200, 1209-10 & n.20 (9th Cir.

(...continued)

Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (citation
omitted).
As the Ninth Circuit noted, when Chief Justice Warren first articulated
this principle, it was in the context of the subjective test that preceded Harlow.
Grossman, 33 F.3d at 1209 (citing Pierson v. Ray, 386 U.S. 547 (1967)). The
court, however, went on to note the principles continuing viability:
29

Even though the Supreme Court subsequently replaced the subjective


good-faith qualified immunity standard applied in Pierson with an
objective reasonableness inquiry, courts have continued to adhere
to the central principle enunciated in that case: where a police
officer has probable cause to arrest someone under a statute that a
reasonable officer could believe is constitutional, the officer will be
immune from liability even if the statute is later held to be
unconstitutional.
Id. (citations and footnotes omitted). Later in its opinion, the court further
elaborated on the rationale for this principle: [W]hen a city council has duly
enacted an ordinance, police officers on the street are ordinarily entitled to rely on
the assumption that the council members have considered the views of legal
counsel and concluded that the ordinance is a valid and constitutional exercise of
authority. Id.

-35-

1994) (citing cases); Malachowski v. City of Keene , 787 F.2d 704, 713-14 (1st
Cir. 1986); see generally 1B M ARTIN A. S CHWARTZ & J OHN E. K IRKLIN , S ECTION
1983 L ITIGATION : C LAIMS AND D EFENSES 9.19 (1997 & Supp. 2003). Of course,
an officers reliance on an authorizing statute does not render the conduct per se
reasonable.

30

Cf. Malley , 475 U.S. at 345-46 (fact that officer applied for a

warrant based on facts he believed to be true does not render conduct per se
objectively reasonable). Rather, the existence of a statute or ordinance
authorizing particular conduct is a factor which militates in favor of the
conclusion that a reasonable official would find that conduct constitutional.
Grossman , 33 F.3d at 1209.
In this case, the district court concluded that defendants were entitled to
qualified immunity, based on defendants reliance on Utah Code Ann. 78-3a301. We disagree. Section 78-3a-301 does not authorize

removal absent pre-

deprivation procedures. Thus, reliance on section 78-3a-301 alone could not


render the defendants conduct objectively reasonable, insofar as the statute did
not authorize the unconstitutional conduct in question.
The defendants, however, in their petition for rehearing, urge us to consider

For example, [w]here a statute authorizes official conduct which is


patently violative of fundamental constitutional principles, an officer who
enforces that statute is not entitled to qualified immunity.
Grossman , 33 F.3d at
1209.
30

-36-

the effect of Utah Code Ann. 62A-4a-202.1 and 62A-4a-202.2 on the qualified
immunity analysis in this case. Section 62A-4a-202.2 provides only for

post -

deprivation measures in child removals made pursuant to section 62A-4a-202.1.


Defendants contend that they were acting pursuant to 62A-4a-202.1 and 62A4a-202.2 when they committed the constitutional violations in question.
We decline petitioners invitation for two reasons. First, the district court
did not rely on either provision in finding qualified immunity; thus, the more
prudent course is to allow the district court to consider the effect of the two
statutes in the first instance.

Cf. S.E.C. v. Cochran , 214 F.3d 1261, 1269 (10th

Cir. 2000). Second, in light of the nature of the inquiry, it would be impossible to
consider the question on the record before us.
On this latter point, we make the following observations. First, the
presence of a statute is

not relevant to the question of whether the law is clearly

established. Cf. V-1 Oil , 902 F.2d at 1488 n.5 (recognizing that we should not
refer to legal advice the defendant received when we decide whether or not the
governing law was clearly established). Rather, a state officers reliance on a
statute is one factor to consider in determining whether the officers actions were
objectively reasonable,

Wilson , 526 U.S. at 617, keeping in mind that the

overarching inquiry is one of fair notice,

Hope , 122 S.Ct. at 2515.

Second, in considering the relevance of a statute under a qualified-37-

immunity analysis, the appropriate inquiry is not whether a reasonable state


officer could have concluded that the statute authorized the unconstitutional
conduct in question. Rather, a court must consider whether reliance on the statute
rendered the officers conduct objectively reasonable, considering such factors
as: (1) the degree of specificity with which the statute authorized the conduct in
question; (2) whether the officer in fact complied with the statute;

31

(3) whether

the statute has fallen into desuetude; 32 and (4) whether the officer could have
reasonably concluded that the statute was constitutional.

33

Based on the above, we reverse the district courts conclusion, insofar as it


In this case, removal pursuant to section 62A-4a-202.1 required that three
conditions be met: (1) the services caseworker must have substantial cause to
believe that any of the factors described in Section 78-3a-301 exist; (2) there are
no other services reasonably available . . . which, if provided to the minors
parent or to the minor, would eliminate the need to remove the minor from the
custody of his parent; and (3) the services caseworker must be accompanied by a
peace officer, unless one is not reasonably available. Utah Code Ann. 62A-4a202.1. We leave it to the district court on remand to consider whether defendants
in fact relied on Utah Code 62A-4a-202.1 and 202.2 (as opposed to section 783a-301), and whether defendants complied with the statutory provisions
(recognizing that the district courts findings under section 78-3a-301 likely
address this question, at least in part).
31

The Ninth Circuit in Grossman highlighted this consideration: We do


not deal here with an ordinance which has fallen into desuetude. An officer
enforcing such an enactment is not necessarily entitled to rely on the assumption
that it continues to be consistent with the current state of constitutional law. 33
F.3d at 1209 n.19.
32

As we noted earlier, where a statute authorizes conduct that is patently


violative of fundamental constitutional principles, reliance on the statute does
not immunize the officers conduct.
See Grossman , 33 F.3d at 1209.
33

-38-

relied solely on Utah Code Ann. 78-3a-301. On remand, the district court may
consider the effect of Utah Code Ann.

62A-4a-202.1 and 62A-4a-202.2 on

defendants claimed entitlement to qualified immunity, in accordance with the


preceding.
b.

Advice of counsel

In V-1 Oil , we held that reliance on the advice of counsel in certain


circumstances [can] rise[] to the level of extraordinary circumstances sufficient
to justify a grant of qualified immunity. 902 F.2d at 1488. Whether reliance
upon legal advice bars our imputation to [the defendant] of constructive
knowledge concerning the laws allegedly violated by his conduct depends upon
the circumstances of each case.

Id. at 1489 (citation omitted). Relevant factors

include: (1) how unequivocal and specific the advice was; (2) how complete the
information provided to the attorney giving the advice was; (3) the prominence
and competence of the attorney; and (4) the time between the dispersal of the
advice and the action taken.

Id.

In V1-Oil , we granted the state officer qualified immunity, concluding that


the officers reliance on advice of counsel prevented [him] . . . from knowing the
relevant legal standard, even though the relevant Fourth Amendment principle
was clearly established.

Id. at 1488-89. Specifically, we stated:

We hold that a reasonable officer in [defendants] position that is,


an officer who conducts a warrantless search on the same day he was
-39-

advised by fully informed, high-ranking government attorneys that a


particular statute, which had not yet been tested in any court,
lawfully authorized that particular search should not be expected to
have known that the search was unconstitutional.
Id. at 1489.
In this case, the district court alternatively concluded that the defendants
were entitled to qualified immunity based on their reliance on advice of counsel.
For the reasons set forth below, we reverse and remand.
First, the district court again based its decision on Utah Code 78-3a301, 34 which, as discussed

supra , does not authorize removal without pre-

deprivation procedures.

Second, based on the record before us, we cannot

35

determine whether the district court was correct in concluding that Petersens
advice related specifically to the conduct in question:

36

removing Rusty from his

home without any pre-deprivation procedures. Finally, although the district court
concluded that the advice was specifically tailored to the facts giving rise to this

According to the district courts opinion, [Defendant] Peterson, an


assistant Utah attorney general representing DCFS in the child protection
division, . . . advised [Morrison and Sneddon] that it would be lawful to remove
Rusty based on the information they possessed[,]. . . bas[ing] his opinion on Utah
Code Ann. 78-3a-301. Dist. Ct. Order at 3.
34

Although defendants now claim that Petersons advice was also based on
Utah Code 62A-4a-202.1 and 62A-4a-202.2 , again, we think it best to allow
the district court to consider this question in the first instance.
35

36

See Dist. Ct. Order at 26 .


-40-

controversy,

37

neither the district court opinion nor the record indicate the

specific facts upon which Defendant Peterson relied in approving removal.


III. Conclusion
In summary, we hold that plaintiffs have adequately alleged that defendants
violated their constitutional rights under the Fourteenth Amendment when, in the
absence of extraordinary circumstances, they entered the Roskas house and
removed Rusty from his parents custody and care without notice and a hearing
(Count 5). We hold that the district court was correct in granting defendants
motion for summary judgment on the remainder of the plaintiffs claims.
On remand the district court should first determine which defendants are
still properly joined in the matter before proceeding further. The district court
must then determine whether the defendants are entitled to qualified immunity on
Count 5.
We conclude by noting, as we did in

Franz , that [w]e must further

underscore the defendants motive to protect the child . . . does not vitiate
plaintiffs [constitutional] rights.

That motive, however, may enter the calculus

of the damages, if any, that his actions justify. 997 F.2d at 793.
This case is AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings consistent with this opinion.
37

See Dist. Ct. Order at 26 .


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